P A HAULAGE LTD v MR T J GAFFNEY [2009] UKEAT 0297_09_0411

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0297_09_0411Case No Appeal No. UKEAT/0297/09/JOJ UKEAT/0298/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
P A HAULAGE LTDAPPELLANTMR T J GAFFNEYRESPONDENT
Before
Mr Justice UnderhillDate 4 November 2009
[1]APPEARANCES For the Appellant MR W EMERSON (of Counsel) Instructed by: Messrs Alan Wheatley Solicitors, 40-41 New Broadway, Tarring Road, Worthing, West Sussex BN11 4HS. For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY PRACTICE & PROCEDURE Appearance/Response Employment Judge refused, on a preliminary consideration under Rule 35, an application under Rule 34 for a review of the rejection of a late-submitted response, in circumstances where there were credible grounds for believing that R had previously submitted a response in time but it had gone astray - Claim upheld at a hearing at which R was in consequence debarred from participating under Rule 9. Held that the application should not have been refused summarily - EAT conducted a review itself and directed that the response be accepted and the claim be reheard. THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) This appeal is procedurally somewhat complex. It is best that we start with the history before identifying precisely what orders are being appealed against and the resulting issues.[2]The Appellants are a small family haulage company in Sussex with only four employees, two of whom are family members, Mr D Chorley and his daughter, Tracie. Tracie Chorley does the basic paperwork for the business but she is not a sophisticated administrator or letter-writer. On 18 July 2008 the Appellants were sent notice from the Southampton regional office of the Employment Tribunal of a claim brought against them by an ex-employee, Mr Gaffney. They were told that at that stage only part of Mr Gaffney's claim had been accepted by the Tribunal, that is complaints of unfair dismissal and failure to provide written terms and conditions. The letter went on, as is standard form:
"The Tribunal will not deal with the remaining complaints in the claim form unless they are accepted at a later date. If this happens, you will be notified and allowed to respond to them."
That to the uninitiated may seem a little opaque, but it is now clear that there was also a claim for unpaid wages and there was evidently an issue as to whether Mr Gaffney had raised a grievance in that regard.[3]It is the Appellants' case, now supported by a witness statement from Tracie Chorley, that they returned a completed ET3 within five days of receipt of the notice of claim from the Employment Tribunal. Unfortunately, they did not keep a copy of the ET3 as sent nor was there any covering letter. They then heard nothing more about the claim, except possibly a formal inquiry from ACAS, until 23 December 2008 when they received notice of a hearing on 16 January 2009. We do not have that letter, but is clear from the subsequent history that such a letter must have been sent and no doubt it would have referred to the fact that no ET3 had been received. Ms Chorley at once telephoned the Tribunal and explained what had happened. She was sent a further form ET3 which she completed and returned on 29 December 2008.[4]There is an undated letter at page 5.11 in the bundle which says (we have corrected a few obvious errors):
"The first paper work we had was dated 18 th July 2008 and we sent it back to you 5 days later And we thought it had been dropped as we had not heard anything else from you. So all I can do is say I am very sorry that you did not receive the paper work back as it must have got lost in the post. We do take things like this very seriously. Please can you take this into consideration."
[5]We have been told today that Ms Chorley believes that that letter was sent with the ET3 on 29 December 2008. Since it is undated, that cannot be confirmed; and the language of it perhaps tends to suggest, though it is not conclusive, that it may have been sent at a slightly later date in response to some query about why the ET3 was being submitted at that stage. Nothing, however, turns on this.[6]On 9 January 2009 the Tribunal wrote to the Appellants rejecting the response. The letter reads as follows:
"REJECTION OF RESPONSE Employment Tribunals Rules of Procedure 2004 I am returning the response because it was received more than 28 days after you were sent a copy of the claim. Employment Judge Peters has therefore decided that it cannot be accepted. The claim will now proceed undefended. You are not entitled to take any part in the proceedings except to make applications for review of a default judgment or certain other decisions in the case, to be called as a witness by another person or be sent a copy of any judgment or Order made against you. The accompanying notes explain what steps can be taken as a result of this rejection."
[7]By letter dated 13 January 2009 Mr Chorley wrote in the following terms:
"I am asking for a review of rejection of response. As we had sent you back all correspondence that we had received from you well within the time limit. But you did not receive our response which was sent back in July. It looks like it may have been lost in the post to which we had no knowledge of. Or we would have resent the paper work to you again. And as Mr Gaffney left our employment himself and we did not dismiss him. And he did have a contract of Employment and our Accountant checked his entitlements to which we paid him the calculated amount owning. We are asking you please to let us defend this case."
[8]That is a layman's letter but it is nevertheless clear that it is an application for review of the rejection of the Appellants' response under Rule 34 of the Employment Tribunal Rules of Procedure , relying on rule 34(3)(e) - that is to say, that the interests of justice required a review. Essentially, two points are invoked:(a) that an ET3 had already been submitted but had apparently been lost; and(b) that there was a substantive defence to the claim. So far as the latter point is concerned Mr Chorley had written a letter the previous day which set out the nature of the defence, though that was in any event apparent from the ET3.[9]On 15 January 2009 the Tribunal responded to that application as follows:
"Thank you for your letter dated 13 January 2009. Employment Judge Green refuses the application for a review of the rejection of Response. The response is dated 29 December 2008 and no evidence of an earlier ET3 has been provided."
[10]It is convenient to give at this stage our view about that decision. It was evidently, though the rule is not specified, a decision taken by way of preliminary consideration of the application for review under rule 35(3), on the basis that the judge considered there were no grounds for the decision being reviewed or that there was no reasonable prospect of it being varied or revoked. With respect to the Employment Judge, we do not think it was open to him to take that course. The correspondence from the Appellants had clearly raised a sufficient question as to whether the interests of justice required a review for the application not to be capable of being disposed of summarily. We would also note that it was not quite right to say there was no evidence of the ET3 being sent in time. There was an adequately clear statement from Mr Chorley to that effect in the application letter, and the undated letter to which we have already referred, which is likely to have been received by the Tribunal by that date, contains similar evidence from Tracie Chorley. It is true that there was no independent evidence, nor documentary evidence in the sense of a copy of the ET3 as allegedly sent in July; but that is not the same thing as there being no evidence and is not necessarily conclusive. A sophisticated or well-organised employer would have kept a copy of the ET3 as originally sent and would have been able to supply it and/or would have sent documents by recorded delivery; but there is no obligation to do so and it cannot be assumed from the absence of such evidence that no ET3 was sent at the time as alleged. It seems to us that the matter required investigation, most obviously at a hearing. The obvious course would have been to investigate the matter at the hearing fixed for 16 January. It is true that if the Tribunal had decided on that occasion that the response ought to be admitted, the hearing would then have had to be adjourned, but sometimes such adjournments are necessary in the interests of justice.[11]In any event the hearing proceeded on 16 January. The Appellants did not attend. That is not a matter of criticism since they had been told, pursuant to rule 9 of the Employment Tribunal Rules , that they could take no part in the hearing. The hearing was conducted by Employment Judge Miles sitting alone, as he was entitled to do in a case where rule 9 applied. Not surprisingly, having heard only the Claimant's case the Judge upheld his claims. By a Judgment and Reasons sent to the parties on 11 February 2009 he declared that the Claimant had been unfairly dismissed and awarded compensation in the sum of £6,968. He also decided that the Claimant had not been given written particulars of his terms and conditions of employment and an element reflecting that was included in the award. The Judgment also included an award of £952 by way of unpaid wages. That is surprising since, as we have noted, the original notice of the claim said that the Appellants would be given an opportunity to respond to any claim apart from those of unfair dismissal and failure to give written particulars of the terms and conditions of employment, if any such further claim was subsequently admitted. We have seen no suggestion that any such further notice was given to the Appellants and we are told that it was not. We thought it right to note this point but it is not, in the end, necessary to our decision.[12]By letter dated 19 February 2009 the Appellants wrote to the Tribunal as follows:
"The Respondent is applying for a review of the default judgment as we are appealing against the judgment with the Employment Appeal Tribunal."
[13]On 28 April 2009 the Tribunal responded as follows:
"Your application for a review of the decision was referred to Employment Judge Miles. Your application for a review has been refused because the Judge considers that the letters of application or basis either under Rule 33(2) or Rule 34(3) of the 2004 Procedure Regulations upon which a application can be granted. The Notice of Appeal has not been produced."
Something has gone wrong with the English there, and we are not clear about the reference to "letters", in the plural; but the basic position is clear enough. The Judge took the view that the case did not come under rule 33 because the decision at the hearing of 16 January did not constitute a default judgment. That must be right and because the Appellants had shown no other grounds for a review and on the basis of the letter of 19 February the decision to refuse must be right as well. Viewed, therefore, in its own terms the decision to refuse a review is unimpeachable. The real problem, however, was what had already occurred.[14]The Appellants have appealed against, on the face of the Notice of Appeal, two decisions: the substantive decision, described as being of 16 January though formally sent to the parties in February, and the decision of 28 April to refuse the review application. It is, however, clear in substance that the ground of appeal on which they rely is the rejection on 15 January of the application to review the rejection of the late response and the consequent application of rule 9 so that they were unable to participate in the hearing of 16 January.[15]Directions were given on the sift for the Appellants to submit full evidence, including a witness statement, relevant to, in effect, its claim to have been entitled to present a late response so that, if it believed that the Judge had been wrong to reject the application for a review of the rejection of that response this Tribunal would be in a position to conduct that review itself. With that in mind, the Claimant was directed in the order produced on the sift in his Respondent's Answer to:
"to identify any matters of fact in the Appellant's witness statement which are disputed and state whether he wishes the author of the witness statement to attend for cross-examination."
[16]The Claimant's representatives, the Citizens Advice Bureau office in Islington, wrote to this Tribunal on 19 August 2009 in the following terms:
"We have been asked to write to the Employment Appeal Tribunal by Chichester and District Citizens Advice Bureau on behalf of the Respondent to these appeals. While we do not give consent to the above appeals, we are instructed not to actively resist them, and we do not intend to appear at the Hearing. We rely on the reasons given by the Employment Tribunal. By taking this position we do not intend to show any disrespect to the Employment Appeal Tribunal or the Employment Tribunal. We note that the Appellant appeals the decision of the Employment Tribunal made on 15 January 2009 refusing the application for a review of the rejection of response, and, by separate potential appeal number UKEATPA/0220/09/JOJ, the decision made on 28 April 2009, refusing the application for a review of the default decision on liability and remedy. We respectfully put forward the suggestion that, should the Employment Appeal Tribunal uphold the appeal on the application to review the rejection of the response, the matter should be disposed with by way of the Employment Appeal Tribunal carrying out the review itself and, if its decision on that matter is favourable to the Appellant, by remitting the case to the Employment Tribunal for a hearing on liability and remedy."
[17]Accordingly, the appeal has proceeded before us today in the absence of the Claimant or his representatives. The Appellants have been represented by Mr William Emerson of counsel to whom we are grateful for his assistance.[18]We are prepared to treat this appeal as being in substance an appeal against the refusal of a review of the rejection of the Appellants' late response and to give leave to amend for that purpose, if necessary. It is a nice point whether it is necessary for the appeal to be framed in that way or whether it would be possible to impugn the substantive decision on the basis that the earlier decision to refuse a review was wrong in law. That is not a debate that we need decide. We might in other circumstances have felt some concern about taking this course without prior notice to the Claimant's representatives, but it is to be noted that the Citizens Advice Bureau in its letter makes it clear that it understands the appeal to be, at least in part, against the decision of 15 January refusing the application for a review of the rejection of the response. That shows not only acute judgment on the part of the author of the letter but also they will suffer no prejudice if we proceed on that basis.[19]We are satisfied, for the reasons already given, that the Employment Judge should have acceded to the application for a review. We are also satisfied that it would be right, as urged on us both by the Appellants' and by the Claimant's representatives, for us to conduct that review ourselves, that not having occurred at Tribunal level, using our powers under section 35(1) of the Employment Tribunals Act 1996 .[20]Doing so, it is our judgment that the Appellants should have been allowed to present a late response. The Claimant not having taken the opportunity to challenge the explicit evidence in the witness statement of Tracie Chorley that she had indeed posted a ET3 in due time, we feel that we should only reject that evidence if it is inherently implausible or contradicted by other material. Though it is certainly rather surprising that the ET3 as originally sent should either have been lost in the post or lost at the Tribunal office before being properly registered, it is not so implausible that we would be entitled to reject her evidence to that effect out of hand: these things do, unfortunately, occasionally happen. As regards any contradictory material, we put some questions both to Mr Emerson and, indeed, directly to Ms Chorley about such potential anomalies as we could see in the paperwork and we received satisfactory answers. We must therefore, we believe, accept the Appellants' evidence on this point.[21]In those circumstances - that is to say, where a respondent has put in a response in time but for reasons beyond its control it has not reached the Tribunal - it would, at least in a case like the present, be just to allow the presentation of a late response. There may be other cases - for example with sophisticated employers who might have been expected to chase up the non-acknowledgement of a late response - where a different view would be possible but in the circumstances of the present case we believe that a late response should have been allowed. It follows from that rule 9 ought not to have been treated as applying and that the Appellants should not have been debarred from participating in the hearing.[22]That being so, the decision recorded in the Judgment and Reasons sent to the parties on 11 February 2009 cannot stand. Justice requires that the Appellants should have the chance to make their defence to the Claimant's claim, and the case will be remitted to the Employment Tribunal for that purpose.[23]It seems to us that the case should not be heard by Employment Judge Miles, partly because it might be difficult for him to consider it with a fresh mind but also because the hearing will have to be before a full Tribunal and it would be undesirable that there be a position where one member of the Tribunal had heard the Claimant's evidence before but the other members had not. We think that it is also undesirable that the hearing should be chaired by Employment Judge Green, whose decision of 15 January we have held to have been wrong in law.